Last year I wrote about the problem with section 108(7) of the Equality Act 2010, which appeared to suggest that victimisation after employment ended was not covered by the Equality Act. This resulted in two contradictory decisions of the EAT on whether such victimisation was prohibited by the Equality Act.

The Court of Appeal has now given judgment in the case of Jessemey v Rowstock. Lord Justice Underhill, giving the lead judgment, held that although “on a natural reading of the relevant provisions … post-termination victimisation is not proscribed … once the proper contextual materials are considered it seems … equally clear that that is not the result which the draftsman intended” (paras 28 and 29).

His Lordship went on to hold that this error could be corrected by the courts, both by reference to EU law and under the principles of interpretation of domestic law which applied where there was an obvious drafting error. Accordingly he concluded that “post-termination victimisation is proscribed by the 2010 Act“.